BRYANT y. FATIMA PTY. LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Kirpy P, PRIESTLEY JA and POWELL JA 1 May 1995 [1995] NSWCA 63 PRACTICE AND PROCEDURE — Court of Appeal — notice of appeal — irregular joinder of parties and grounds in appeal against different orders affecting different parties — held: strike out grounds and parties relevant to earlier orders — reservation of leave to move court for leave to appeal out of time from earlier orders. Kirby P. The proceedings now before the Court are complicated. Their complexities are revealed by the earlier transcript of proceedings in the Court, the earlier judgment of Mahoney JA and the exchanges between the parties recorded in the transcript of the proceedings heard before the Court, differently constituted, on 3 April 1995. By direction of the Court the last mentioned transcript was made available to the parties. However, apparently, through some mistake, it was only received as recently as Friday 28 April 1995. Limiting the appeal before the Court The proper course to be followed in these proceedings has been explained during the course of the argument of the present proceedings. For the reasons which have been elaborated by the Court, in particular by Handley JA. during the course of argument, it is clear that only grounds eight and nine of the present notice of appeal relate to the judgment of Young, J. of 27 July 1994. Only they should survive in the notice of appeal. All the other grounds of appeal, paragraphs one to seven and the orders sought in paragraphs one and two of theorders sought, should be struck out from the notice of appeal. They are not relevant to the judgment under appeal. Challenge to earlier orders of the trial court The Court has been informed that Mr Bryant and, insofar as it may be relevant, Rylegrove Pty Limited (Rylegrove) wish to challenge the earlier orders of Young, J. of 21 July 1993. Of course, those parties are now well out of time for the filing of a notice of appeal against those orders for Mr Bryant and Rylegrove. The Court has been told that an assumption was made that the proceedings were common, namely within the Court file ED 473 of 1992. The orders of Young, J. of 21 April 1993 were seen to be connected with the orders of 27 July 1994. It was assumed that the appeal, brought in August 1994, could raise, in challenges to the later orders, the objections which were held in relation to the earlier ones. For reasons which have been explained, that was not a proper course. It will now be necessary, if Mr Bryant (or Rylegrove if it be proper) wish to challenge the orders of Young, J. of 21 April 1993, that he or they file a notice of motion seeking an extension of time within which to lodge a notice of appeal. This should be supported by an affidavit explaining the matters that have been placed before the Court today and justifying the delay. For my part I would give Mr Bryant, and if proper Rylegrove Pty Limited, the extension necessary to make such an application. It will then be a matter for the Court hearing the application to determine that application in the light of the affidavit and the arguments then 2 UNREPORTED JUDGMENTS advanced. It is possible, having regard to the matters which have been put before the Court today, that the opponent will not object to the extension of time if sought. But that will be a matter for it. Orders. The orders which I propose are:1. Strike out the first appellant, Joseph Richard Bryant and strike out Holdings Pty Limited as the second respondent from the appeal in the notice of appeal now before the Court in CA No. 40696 of 1994; 2. Strike out of the said notice of appeal grounds one to seven and orders sought one to two; 3. Grant leave to Mr Bryant, and if it be so advised Rylegrove Pty Limited, to make application, although out of time, on motion, for an extension of time, within which the proper party or parties may appeal to the Court from the orders of Young, J. of 21 April 1993; and 4. Order that the costs of the proceedings now before the Court be respondent's costs in the appeal. Handley JA. I agree. I would, however, add this caveat, that it may well be that Rylegrove Pty Limited has no standing to challenge the decision of Young, J. in the first proceedings which led to the judgment of 21 April 1993 in which his Honour determined a dispute as to the ownership of 600 shares in the capital of Fatima Pty Limited. It is possible that the only competent appellant in relation to that decision is Mr Joseph Richard Bryant himself. Powell JA. Whilst agreeing with the orders proposed by the President, I join with Handley, JA. in the caveat which he has entered, for it seems to me as at present advised, that Rylegrove Pty Limited would have no standing to challenge the order, the declaration made by Young, J. in the 1993 judgment. Kirby P. The orders of the Court are accordingly as I propose. You, Mr Gildea, will doubtless advise Rylegrove and, to the extent that it is proper, Mr Bryant about the matters which have been raised by Handley and Powell JJA. Orders accordingly. Counsel for the appellant/opponent - Bryant: In person Solicitors for the appellant - Bryant: In person Counsel for the appellant/opponent - Rylegrove: M Gildea Solicitors for the appellant - Rylegrove: Greaves Wannan and Williams Counsel for the respondent/claimant: J L Cunningham (Solicitor) Solicitors for the respondent: Cunningham Galilee